Strasbourg human rights court threatens key counter-terrorism powers

Key anti-terror powers which came to prominence in the David Miranda security
case will be scrutinised by judges at the European Court of Human Rights

Anti-terror powers were used to detain David Miranda, right, who was carrying 58,000 stolen secret documents through Heathrow airport on behalf of his partner Glenn Greenwald, leftPhoto: RICARDO MORAES/REUTERS

A key counter-terrorism power used to protect Britain against extremists is being threatened by human rights judges in Strasbourg.

The European Court of Human Rights has given the go-ahead to a legal challenge seeking to strike out the controversial powers, which were used earlier this year to detain the partner of a Guardian journalist who was carrying 58,000 stolen British secret documents through Heathrow airport.

The appeal, brought by a British investment banker who was detained for more than four hours under the legislation, could lead to the power being ruled illegal.

Such a move would inevitably inflame tensions over the court’s interference in British domestic affairs and comes after the body demanded that prisoners be given the right to vote, to the fury of ministers and MPs.

An application to have the case thrown out made by the British government has already been refused.

Sabure Malik, from Benfleet in Essex, has told the court his right to private and family life and his right to liberty were infringed by police who stopped and questioned him at Heathrow in November 2010.

Mr Malik was returning from Saudi Arabia, where he had been on the Hajj pilgrimage to Mecca with his mother.

Mr Malik’s case, which is supported by Liberty, the civil rights group, was accepted by a panel of Strasbourg judges led by Ineta Ziemele, a Latvian judge who sits as section president of the court.

The Home Office has described the powers under Schedule 7 of the Terrorism Act 2000 - which allow police to detain suspects at ports and airports for up to nine hours without reasonable suspicion - as a “key part of the United Kingdom’s border security arrangements”.

Amid concerns the power is operating unfairly ministers have already launched a review, but have insisted: “Schedule 7 examinations have produced information which has contributed to long and complex intelligence-based counter-terrorist investigations.”

Earlier this month members of Parliament’s Joint Committee on Human Rights found there was a “clear” case to retain the powers.

MPs and peers on the committee said allowing police to stop and search suspects at airports without suspicion were “not inherently incompatible” with human rights laws.

The powers were used to detain Mr Miranda, the partner of Glenn Greenwald, a Guardian journalist who has written a series of stories based on leaks from former CIA employeeEdward Snowden.

Edward Snowden (EPA)

Police later revealed Mr Miranda had been carrying 58,000 highly classified British documents, which the Government says would have put British agents’ lives at risk if they fell into the wrong hands.

Andrew Parker, the director general of the security service, MI5 (MI5/PA)

Mr Malik returned to London on a Gulf Air flight from Jeddah via Bahrain in November 2010.

While on the pilgrimage he had let his beard grow and his head had been shaved, the court papers said.

He was told he would be held under Schedule 7 and when he refused to consent to fingerprinting and DNA sampling the banker was taken to Heathrow police station.

“The applicant was then marched through the terminal by the police officers, in plain view of all his fellow Hajj group members,” said the court document.

“He felt humiliated by the group members seeing him treated like a common criminal.”

He claims his Koran was treated disrespectfully by being “hung upside down, shaken and flicked through” during a search by police.

Mr Malik was released without charge approximately four and a half hours after he was stopped at the border.

“The entire incident left the applicant feeling humiliated and ruined his Hajj experience,” said the papers.

“All the friends he made during the experience ceased contact with him after seeing him detained at the airport. He had never been arrested or detained by the police before.”

He said his rights had been violated by the use of the powers.

Lawyers for the Government argued that Mr Malik’s case was ineligible to be heard by the European Court because their rules require applicants to have first brought a case in the domestic courts.

However, the Strasbourg judges said it would be “invidious” to expect him to pay for a test case all the way to the Supreme Court because “there was a long line of case-law from this court emphasising that the remedy he would ultimately receive would not be an effective one”.